1iOOV)!:R V.ORAWimRD CO"E:rNTY.
7
thata party is not entitled, under existl'ng'lawil,tofilo iaSecdtld petition for the removal upon the same grounds, where upon the first removal by the Same party the federal court declined to proceed; and remanded the suit because of his failure to file the required copy within the time fixed by t!le statute. Whe1J the circuit conrt first remanded the cause, the order to that effect not being superseded, the state court was reinvestpd with jurisdiction, which could not be defeated by another removal upon the same grounds, and by the same party. A different construction of the statute, it can be readily seen, might work injurious delays in the preparation and trial of causes." It will be seel). by a reference to the facts of this case that the removal from the state court was complete, and the jurisdiction of the circuit court had attached by reason of the first petition; but in the case at bar there had not been a removal from the state court, nor had the jurisdiction of this court attached. It is insisted that because the defendant, Butler, prayed an appeal to the Kentucky court of appeals from the order of the judge made April 9, 1889, appointing a receiver, which appeal was granted, he could not thereafter file in the Knox court of common pleas a petition for removal to this court, and we are referred to the case of Railroad Co. v. Rwilroad Co., 29 Fed. Rep. 337, to sustain this view. That case arose under the act of 1875, and the court indicated the opinion that the motion for an injunction which was granted in that case was a trial within the meaning of that act, and therefore the petition for removal from the state court came too late. The court commented upon the fact that the order granting an injunction had been appealed from and superseded, and that before this was done the party had an opportunity of filing his petition for removal in the state court. In the case at bar Butler could not have filed his petition until the term of the state court, which commenced on the 22d of April, which was the day upon which he did file it. The order of the judge of the state court, appointing a receiver, was appealable, but it could not be superseded. The appeal, though prayed and granted, does not appear to have been perfected by the filing of the transcript there, and we think the effect of the petition to remove to this court was an abandonment of the appeal by Butler. We are of the opinion that Butler's motions to set aside the order of May 1, 1889, and to file an amended petition of removal in this court, should be overruled, and that his motion to file the transcript from the Knox county common pleas court should be sustained, and it is so. oruered.
HOOVER
v.
CRAWFORD COUNTY.
(Oircuit Com't, lV. D. Arkansas. June 13, 1889.) FEDERAL COURTs-JURISDICTION-AcTIONS AGAINST COUNTIES.
If a legislature of a state permits a county to contract and issue obligations as evidences of indebtedness to citizens of other states, such legislature cannot prevent such citizens from bring-ing- suits in a federal court in the state of the county by a law which provides that. counties cannot be sued, for the laws of the state permit the counties to create on behalf of the citizens of
8
, FEDERAL REPORTER,
vol. 39.
other states a.p-roperty right as against the counties. and this /.rives the right to such citizens to SlIe the counties in the federal courts. And such rigL t is one which is beyond the cont,,)l of any legislaCve action of the State, and can be regnlated alone by the constitution and laws of the United States. (Syllabu8 by tue Oourt.)
At Law. Suit by J. W. Hoover against the county of Crawford, on ri9 pieces of county scrip of different values, and of the aggregate value of $3,000. All of said scrip bears date July 12, 1887. Defendant demurs to the c0mplaint "because it fuils to state fucts sufficient to constitute a cause of action." Du Val & Cravens, for plaintiff. Lee Sandels &- Warner, for deJendant. PARKER. J. It is claimed in this case that the defemhmt county not be sued because its suable charaeter has been taken away, unless the right is asserted in its own court, by the act of the legislature of Arkausas of February 27, 1879. At that date the legislature passed the lowing act: "St'ction 1. That spctions 9:17, 938, 939, 944, 945, g46, 947, 948, 949. a'ld 4516 of Gantt's Di!{pst of the ot Arlomsas, Hnd all laws and parts of laws making counties corpomlions, and auth()fIzing them to sue alld be sued as such, and they and eacil and every of them are IWTeby, repealed. Sec. 2. Tilat hereafter all pe,sons having demands against ar.y county shall present the sallie, duly verified a"cording to law. to the coullty court of said county for allowance or re.,pction. From the order of the county court tllereon appeals ma,' be prosecuted, as now provitl"d by law. If on any snch appeal the j udgmen t of the con nty t'ourt is reversed, the j ndgmell t and reVl'rsal sllall be certitied uy tile court rendel'i ng the salne to the county conrt, Hwl the .connty court shall entt'r the jlldgment of tile superior ('ourt as its .own. 3. \\Then any conllty has any dl'malld against any pt'rsons or corporations. sllit tllereun ([Jay be brought in the name of the state for the use oftliecoullty. * * *" The seetions of the general law of the state referred to in the act set out above as being repf'aled by said act provide that the counties may sue and be suell, and also for the method of getting service on them. The purpose of the legislature evidently was to take away from the iederalcourts the right to entertain a Sllit against the county in the state. We have a right to infer this from the nature of the act passed by the legislature of the state, and trom the existing condition of things at the time the act was passed. Previous to that time many suits had been brought in the federal courts in the state against counties upon evidences of indebtedness similar in character to these sued on in this suit. J udgments had beeu obtained, and payment compelled, by such courts. I have never heard that any act of intentional wrong or injustice had been done by these courts. 'fhey had simply enforced the collection of honest debts. This act seems to me to be but the exhibition of a toolish a.ud futile purpose founded on an unwarrantable and unreasonable prejudiee against federal courts,· which are as much the courts of the whole people as the; courts of the counties or of the circuits in a state. Can
HOOVER fl. CRAWFORD COUNTY.
9
the purpose of this act be accomplished by the legislature of the state? The legislature has not taken away the whole character of the county as such. Under the general laws of the state it has a right to make contracts, and to issue obligations similar to the ones sued on here. To this extent the legislature has left the county with a function characteristic of a corporate existence. For this purpose it is a civil division of a state, and, consequently, to this extent a county. It is an axiom of the law of this country that the legal jurisdiction of the United States courts comes froUl the constitution and laws of the United States; and under our system it can come from no other source. And when the conditions which uncleI' the constitution and laws of the United States give jurisdiction, the same is free from the touch of any legislathe legal jurisdiction of the state courts is free tive body of a state from the touch of congress. I think it enough for this case to find that the defendant county had a right to contract with a citizen of another state. This right to contract implies liability to suit by a citizen of another state, and this gives jurisdiction to the federal courts. The supreme court of the United States, in Cowles v. Mercer Co., 7 Wall. 118, which is a case analogous in ptillci pIe to this, said: "It is enough for this case that we fi nd the board of supervisors to be a corporation authorized to contraet for the county. The power to contraet with cjtizpns of other states implies liability to sllit by citizens of other states. and no statute limitation of suability can defeat a jurislliction given by the constitution. " This seems to be conclusive of this question. In Payne v. Hook, rd. 430. the supreme court says: "We have rPIl<'atedly 'held that the jurisdiction of thp courts of the United statps over contl'Ovendes between citizens of different states cannut bE' impaired by the laws of the statps which prescribe tile modes of redrt'ss in their courts, or which regUlate the distribution of their j udidal power.'" The laws of the state give the county the power to create on behalf of the plaintiff a property right as against it. In Rauwu/JI Co. v. Whitton, 13 Wall. 270, the supreme court of the United States decides it is a corrt"ct principle that a general rule as to property or personal rights or injuries to either is established by E'tate legislation, its enforcement by a federal court in a case between proper parties is a matter of course. and the jurisdiction in such case is not subject to state In Bank v. Jolly's Adrn'rs, 18 How. 506, the supreme court of the Upited States declared that"The law of a state limiting the remedies of its citizl>ns in its own courts cannot bll applied to prevent the citizens of other states from suing in the courts of the Unitpd in that state for the rel'overy of any property or money there, tu which they may be legaliy or equita1>ly entItled." The doctrine of the above cases has been declared by the supreme court as long ago as the case of Suydam v. Broadnax, 14 Pet. 67. In Hyde v. Stone, 20 How. 175, the supreme court declares: "This court has repeatedly decided that the jurisdiction of the cOllrtsof the United States over controversies between citizens' of different states cannot
10: beimpaired by the laws of the,states which presoribe the mOlles ofrl'QITe5s in their courts, or which reglllatethe distribution of their judicial po,w:er. In rnanycases state laws form 'a rule of. decision for the courts of the' United States, and the forms of proceeding in' these courts have been assimilated to those of the states, either by'legislative enactment or by their own ITn,les. But the courts of the UnitedStntes ,are bound to proceed to jUdgment,. and to afford redress to suitors before them, in every case to which their jurisdiction extends. Theyeanllot abdicate their authority or duty in any case in favol' of another j urisdktio!!.,",
The principle of all these cases has again but recently been reiterated by the supreme court in the case of Ellis v. Davis, 109 U. S. 4,98" 3 Sup. Ct. :&ep. 327. Indeed, there is not and cannot be any dissent from it. Then, as long as the legislature of the sta'te leaves the counties with the power to make contracts with citizens of other states, to create thereby a property right in favor of such citizens, the right to sue the countie;;; in the federal courts exists. ' .It has been suggested that this scrip was taken by plaintiff subject to> allthelaws of the state. This is true,.but he takes it subject to all valid laws. If "law" is invalid ;under thatwhichis the supreme law of the land ,-the constitution of t...'1e United States,-then such statute' is, not a law, but only a simple declaration of a law-making power that is a nullity. I regard the point discussed above as the only one in the case; and, in the face of the settled law, the demurrer in this case must be overruled.
GLENN 1.'. ABELL.
(Oircuit Oourt. D. Boutl! Oarolina. May 31. 1889.) BANKRUPTCy-PROVABLE DEBTS.
The liability of a subscriber to corporate stock for his unpaid snbscription is a provable debt in bankruptcy against the estate of such subscriber. though no assessment has yet been made. under Rev. St. U. S. l\ 5067. providing that all djlbts due and payable from the bankrupt at the commencement of proceediIlgs or then existing and payable in the future shall be provable debts.
At Law. Rntledge £to Rutledge, for plaintiff. Wells £to Orr,for defendant. . ,SIMONTONjJ.i This is an action at law. Both parties by stipulation in writing waive a Ju·ry and submit all the issues to the court. ,
' { '
FINDINGS OF FACT.
, The National'Express & Transportation Company was a corporation oreated by an act of the ",tate of Virginia, 12, 1865. Its capital stock fixed at $5,000,000, the privilege of increasing it to $10,000,000. The shares fixed at $100 each. It could comnlep.ce business when one-third 9£ its shares were subscribed for, and